Marriage of Thuftin v. Bush

OPINION

FOLEY, Judge.

This appeal is from an order reducing the amount of child support and ordering payment of arrearages. Appellant challenges the modification of support; respondent seeks review of provisions regarding child support arrearages and visitation. We affirm in part, reverse in part and remand.

FACTS

In July 1983 appellant Roxanne Thuftin had a child, J.E.B. Respondent Franklin Bush, Thuftin’s former husband, acknowledged paternity of the child and signed a stipulation agreeing to pay $200 per month child support. Bush was granted the right to reasonable visitation.

Bush has a serious spinal condition and receives monthly social security and veterans dependent's benefits. At the time of the stipulation, he was receiving a total of $579 per month. Bush is a gospel singer, performing at churches, schools and other institutions. His appearances are handled by a non-profit corporation, Burning Bush Presentations, which solicits contributions. Bush claims to receive no salary or other income from the corporation; however, the corporation has provided him a motorhome for his use.

In March of 1986 Bush brought a motion to reduce the child support amount and to provide a set visitation schedule. His monthly benefits payments had increased to $614 per month; he claimed, however, to be financially unable to pay the child support ordered and to be dependent on loans for basic living expenses. He stated that Thuftin was interfering with his exercise of visitation.

Thuftin opposed the motion, seeking disclosure of the corporation’s business records, a judgment for unpaid support ar-rearages, and an order requiring visitation counseling. She claimed Bush was earning income as a singer, but concealing it in the corporation.

A family court referee found that Bush was not receiving any income outside of his benefits payments, and ordered support reduced retroactively. On review, the trial court reversed the referee’s order, but reduced future child support to the guidelines amount of $104.38 per month. The court refused to forgive arrears, which it found to be $1,000. The court ordered visitation mediation and concluded that Thuftin should seek disclosure of corporate records through a motion to compel discovery.

ISSUES

1. Did the trial court abuse its discretion in modifying child support?

2. Did the court abuse its discretion in ordering payment of arrearages?

3. Did the court abuse its discretion in ordering visitation mediation rather than a set visitation schedule?

ANALYSIS

1. Modification of Support

As the moving party, Bush had the búr-den of showing a substantial change in circumstances warranting a modification of support. See Minn.Stat. § 518.64, subd. 2 (Supp.1985); Heaton v. Heaton, 329 N.W.2d 553, 554 (Minn.1983). His benefit payments, however, which he claims are his sole income, have increased slightly. He claims no other change in the circumstances of the parties. He claims no change in his personal financial circumstances arising since the stipulation as a result of his music ministry. His only claim is that he overestimated his financial capacity to provide support for his child.

Bush was represented by counsel when he signed the stipulation, and agreed to pay support above the guidelines amount against the advice of his attorney. It is clear that the parties to a divorce may stipulate that one will undertake a level of performance exceeding that which a court would have the right to impose upon him or her. LaBelle v. LaBelle, 302 Minn. 98, 115-16, 223 N.W.2d 400, 410 (1974). In this case, Bush claims to have agreed to pay $200 per month in child support because he expected to receive earnings from his music ministry which have not materialized. This disappointment does not justify a reduction of support unless an objective change of circumstances is shown. See Minn.Stat. § 518.64, subd. 2; Kehr v. Kehr, 375 N.W.2d 88, 90 (Minn.Ct.App.1985) (stipulated support award may be modified on a showing of a change in circumstances).

Objective standards must be applied to the modification of stipulated child support as well as to court-ordered support. Otherwise such stipulations, which are to be encouraged, would be effectively undermined. Fifield v. Fifield, 360 N.W.2d 673, 675 (Minn.Ct.App.1985).

The trial court reduced the child support ordered without finding a substantial change in circumstances which made the original order unreasonable and unfair. Since the record conclusively establishes no change in circumstances, we need not remand for further findings under Moylan v. Moylan, 384 N.W.2d 859, 863 (Minn.1986) (specific findings of fact required as to the factors considered by the trial court in formulating award). See Price v. Price, 390 N.W.2d 483, 485 (Minn.Ct.App.1986) (statutory factors on which Moylan requires findings become relevant after the moving party meets its initial burden of showing a change of circumstances).

The dissent contends this is a unique case in which inability to pay the stipulated child support amount justifies a reduction in support without a showing of a substantial change in circumstances. Noting that ability to pay expressed as the “financial resources and needs of the noncustodial parent” is a factor in setting child support, the dissent reasons that a substantial change in the ability to pay justifies a modification of support. Minn.Stat. §§ 518.17, subd. 4(e), 518.64, subd. 2 (1984).

Even if current “inability to pay” is a sufficient ground for modification as the dissent suggests, the evidence here does not establish it. Bush presented no documentation of his expenses, past or present. His affidavit presented the briefest summary of current expenses. His fuel, food, and medical and dental care are paid through government assistance. Only a transportation expense of $358 per month pushes his expenses, including child support, above his reported income. In light of Bush’s frequent business travels and the use of a corporate-owned motorhome for these travels, this expense should be documented. However, this court is not a factfinder. We note that neither the referee nor the trial court made a finding as to Bush’s current expenses. The trial court made no finding as to Bush’s “ability to pay.” Without such findings, this court under Moylan could not determine what change in expenses has occurred or whether Bush is unable to pay the agreed amount of child support. Id. at 863.

We further conclude that the trial court did not err in failing to order a disclosure of the corporate records. Thuftin did not seek an increase in support, and she is not required to show a change in Bush’s income in order to retain the current level of support. She may bring a motion to compel discovery if she seeks an increase in support.

By affirming the trial court on the discovery issue, we do not imply acceptance of Bush’s claim that he has no additional income. Other income is simply not relevant given the increase in disability income and the standard for modification. We believe that a disclosure of corporate records would be required in this case only if “ability to pay” were the appropriate standard for modification.

This case presents unique financial as well as personal circumstances. We do not agree that those circumstances bar Bush from relief in the future. His disability payments are only one element of his financial circumstances, the cost-of-living increases a very minor factor. To obtain relief, Bush need only present evidence of all his financial circumstances from which the trial court could find a substantial change occurring since the stipulation.

2. Arrearages

The trial court ordered Bush to pay arrearages of $1,000. It did not reduce this sum to judgment, nor require evidence as to the amount of support past due.

Bush did not contest the amount of ar-rearages. He did, however, submit an agreement signed by Thuftin, as a partial settlement of other litigation, in which she agreed that Bush’s share of the dividends from jointly-owned stock would be credited as child support payments. The trial court made no finding on the amount or validity of such a credit.

We note from the record that there is no affidavit from Hennepin County Support and Collections as to the amount of arrear-ages, nor is there an affidavit from Thuftin establishing that amount. Thuftin’s “blanket” affidavit, covering all factual assertions in her counsel’s memorandum, is inadequate. On remand, the trial court should consider evidence of the credit agreement and require evidence as to the current amount of the arrears.

3. Visitation

Although Bush sought a set visitation schedule, his own travel schedule is irregular and Thuftin works alternating shifts. Bush’s argument at the hearing was not that he could maintain a regular visitation schedule, but rather that he should have more frequent and extensive visitation, given reasonable notice. Inevitably, this would require cooperation between the parties. There was no abuse of discretion in ordering visitation mediation, which Bush agreed to at the hearing.

DECISION

It was an abuse of discretion to reduce child support without a showing of a substantial change in circumstances. The amount of child support set forth in the stipulation and incorporated in the decree at $200 per month is reinstated. The finding on support arrearages is remanded for further evidence. The trial court did not abuse its discretion in ordering visitation mediation.

Affirmed in part, reversed in part and remanded.